This case is before the Authority pursuant to a remand from
the United States Court of Appeals for the District of Columbia
Circuit in United States Department of Defense, Defense Mapping
Agency, Louisville, Kentucky v. FLRA, No. 91-1217 (D.C. Cir. Feb.
28, 1992) (Defense Mapping Agency v. FLRA). The court vacated our
decision and order to the extent that we held that Proposal 2 was
negotiable. The court remanded the case for further proceedings
consistent with the court's decision in United States Department
of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v.
FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point). On remand,
we conclude that Proposal 2 is negotiable.

II. Background

A. Proposal 2

53-1 Supervisory Backups

The following procedure will be followed in
assigning backups to the supervisor in his/her
absence:

The supervisor will ask each of the employees
they directly supervise if they wish to be a
supervisory backup. The supervisor will compile a
list indicating the employees interested in serving
as a backup. The list of backups will be posted in
the work area so that any employee wishing to
follow the chain of command can contact the correct
person.

A supervisor will give written objective
job[-]related reasons for not assigning an employee
as his/her backup. This documentation will be made
available to the Union for review upon request.
The documentation will be locally maintained for a
period of one (1) year.

B. Authority Decision and Order

In National Federation of Federal Employees, Local 1482
and U.S. Department of Defense, Defense Mapping Agency,
Louisville, Kentucky, 39 FLRA 1169, 1183-91 (1991) (Defense
Mapping Agency), we found that Proposal 2, concerning the
selection of unit employees to serve as supervisory backups,
was negotiable. Specifically, we found that the proposal
concerned the conditions under which unit employees would be
assigned supervisory duties in addition to the regular duties
of their positions. We also found that the proposal did not
concern the detail of a unit employee to a supervisory
position.

We concluded that, although the proposal concerns the
work of nonunit positions, the proposal vitally affects the
conditions of employment of unit employees and, therefore,
unless otherwise precluded, was within the duty to bargain
under the Statute. We also concluded that the proposal did
not directly interfere with management's rights, under section
7106(a)(2) of the Statute, to assign employees or assign work
or, under section 7106(b)(1), to determine the types of
employees assigned to an organizational subdivision, work
project, or tour of duty. Consequently, we found that the
proposal was a negotiable procedure under section 7106(b)(2)
of the Statute.

The Agency sought review in the United States Court of
Appeals for the District of Columbia Circuit of our conclusion
that Proposal 2 vitally affects the conditions of employment
of unit employees. During the pendency of that appeal, the
court issued its decision in Cherry Point. Because the issues
on appeal in this case were related to the issues in Cherry
Point, the court remanded this case to us for consideration in
light of its holdings in Cherry Point. Both parties have
filed briefs addressing, on remand, the application of the
court's decision in Cherry Point to the proposal at issue in
this case.

III. Positions of the Parties

A. Agency

The Agency notes that, under the court's opinion in
Cherry Point, the vitally affects test has "no application" to
proposals that attempt "to regulate[] the conditions of
employment of supervisory personnel . . . ." Agency's Brief
on Remand at 6. Consequently, the Agency argues, a proposal
that directly implicates the conditions of employment of
supervisory personnel "can never become a mandatory subject of
bargaining." Id.

The Agency asserts that "Authority precedent has long
established that the procedures which management must follow
in filling supervisory positions, including temporary ones,
are not matters affecting conditions of employment of unit
employees and are negotiable only at the election of the
[a]gency." Id. at 10. The Agency claims that "the same
principle" applies to this case. Id. at 11.

According to the Agency, "[b]argaining unit positions
and supervisory responsibilities are incompatible insofar as
management's duty to bargain is concerned." Id. The Agency
states that, under the disputed proposal, employees
"technically" remain in the bargaining unit and continue to
perform "some of the usual daily tasks" of their bargaining
unit positions, while at the same time assuming supervisory
responsibilities. Id. The Agency claims that the proposal is
"intended to regulate that aspect of the dual position which
involves the supervisory responsibilities." Id. at 11-12.
The Agency maintains that although the proposal might directly
affect unit members, its "focus" is "on regulating how
management chooses who is to perform in a supervisory role."
Id. at 11 n.11 (emphasis in original) (citing First National
Maintenance Corp. v. NLRB, 452 U.S. 666, 667 (1981)).

The Agency argues that any actions taken by an employee
in the role of acting supervisor are matters outside the scope
of the collective bargaining relationship. The Agency
maintains that the bargaining obligation extends only to
matters that settle an aspect of the relationship between
bargaining unit employees and the employer. The Agency
contends that the disputed proposal attempts to regulate the
selection of persons to assume supervisory responsibilities
and that the proposal, therefore, does not concern an aspect
of the relationship between the Agency and unit employees,
even if the person selected remains in the unit "for some
purposes." Id. at 13. According to the Agency, a person
performing in the role of acting supervisor lacks the
"community of interest" with bargaining unit employees
required for inclusion in the bargaining unit. Id.

B. Union

The Union contends that the disputed proposal "involves
communication [and] procedure." Union's Brief on Remand at 1.
The Union notes that the "supervisory backup" referenced in
the proposal is not a detail or a temporary promotion and does
not require any form of personnel action. Id. The Union
claims that being selected as a supervisory backup enhances
employees' promotion potential. The Union also claims that
management does not want to explain its selections for
supervisory backup because its "actual reasons" include
"various types of prohibited actions" and "protected
activities." Id. According to the Union, the Authority
precedent cited by the Agency concerns "personnel actions" and
is not relevant to this case. Id.

IV. Analysis and Conclusions

For the following reasons, we find that Proposal 2 does
not seek to regulate the conditions of employment of
supervisory personnel, but principally relates to the
conditions of employment of unit employees and, consequently,
is negotiable.

In Cherry Point, the court approved the Authority's
adoption of the vitally affects test used in the private
sector, but found that the Authority had misapplied that test
in certain circumstances. According to the court, the vitally
affects test is appropriately used "to define the limited
circumstances in which subjects not normally seen to be within
the compass of mandatory bargaining--e.g., the terms of a
relationship between the employer and a third party--may
become mandatory subjects due to their effect on bargaining
unit employees." Cherry Point, 952 F.2d at 1440. As the
court stated in Cherry Point, "[m]andatory subjects are those
that principally relate to the conditions of employment of
bargaining unit employees." Id. at 1439.

In discussing the application of the vitally affects
test, the court differentiated among four groups of personnel
that might be affected by a proposal: (1) employees not in
any bargaining unit; (2) nonemployees; (3) management and
supervisory personnel; and (4) employees in other bargaining
units. As relevant here, the court held that the vitally
affects test does not apply in circumstances where a union
seeks to regulate conditions of employment of supervisory and
management personnel who are excluded by the Statute from
bargaining units. Id. at 1441. The court noted that,
pursuant to section 7112 of the Statute, supervisors and
managers "are legally disabled from belonging to any
bargaining unit[.]" Id. at 1442. The court concluded,
therefore, that permitting a union to seek to negotiate to
regulate the conditions of employment of supervisors and other
management personnel would "violate the fundamental principle
that a union is the exclusive representative of employees in
the certified or recognized unit, and those employees only."
Id. (emphasis in original) (citing National Council of Field
Labor Locals, American Federation of Government Employees,
AFL-CIO and U.S. Department of Labor, Washington, D.C., 3 FLRA
290, 292 (1980) (Department of Labor) (Authority held
nonnegotiable a proposal specifying procedures for filling
management and supervisory positions)). SeeAmerican
Federation of Government Employees, Local 1923 and U.S.
Department of Health and Human Services, Health Care Financing
Administration, Baltimore, Maryland, 44 FLRA 1405, 1422-23
(1992).

Stated in terms of the principles set forth by the court
in Cherry Point, the issue in this case on remand is whether
Proposal 2 seeks to regulate the conditions of employment of
supervisory personnel or whether the proposal principally
relates to the conditions of employment of unit employees.
Cherry Point, 952 F.2d at 1441-42.

Proposal 2 establishes a procedure governing the
assignment of supervisory duties temporarily to unit
employees. The proposal does not require management to use
unit employees as backups for absent supervisors, but only
takes effect when management has decided that a unit employee
will fill in for a short period of time for the supervisor.
Consequently, the intent of the proposal is not to regulate
the conditions of employment of supervisory personnel, but to
determine the manner in which unit employees will be assigned
as supervisory backup. Accordingly, we find that the proposal
principally relates to the conditions of employment of unit
employees. SeeCherry Point, 952 F.2d at 1439. SeealsoNational Weather Service Employees Organization and U.S.
Department of Commerce, National Oceanic and Atmospheric
Administration, National Weather Service, Silver Spring,
Maryland, 44 FLRA 18, 28 (1992).

Proposal 2 is distinguishable from Proposal 1 in
National Federation of Federal Employees, Local 1482 and U.S.
Department of Defense, Defense Mapping Agency,
Hydrographic/Topographic Center, Louisville, Kentucky, 45 FLRA
640 (1992). In that case, we found, applying Cherry Point,
that the proposal, which required specific training for
supervisors, sought to regulate the conditions of employment
of supervisors. Consequently, we concluded that the proposal
did not concern the conditions of employment of unit
employees. Proposal 2, in contrast, does not establish job
requirements for supervisory personnel, but, rather,
establishes the procedures to be followed when management
decides to assign supervisory duties temporarily to unit
employees. The purpose of the proposal is to determine the
manner in which unit employees will be assigned those duties
and, thus, the proposal principally relates to the conditions
of employment of unit employees.

We also find, for similar reasons, that Proposal 2 is
distinguishable from the proposal at issue in Department of
Labor. The proposal in Department of Labor prescribed the
conditions governing the permanent filling of a supervisory
position outside the unit with a unit employee. On the other
hand, Proposal 2 prescribes the conditions governing the
temporary assignment of supervisory duties to an employee in
the unit and, therefore, principally relates to the conditions
of employment of unit employees. We note that when a unit
employee is permanently or temporarily assigned to a
supervisory position, that employee is not included in the
unit during the period of the assignment. See, for example,
National Federation of Federal Employees, Local 1442 and U.S.
Department of the Army, Letterkenny Army Depot, Chambersburg,
Pennsylvania, 44 FLRA 723, 726-27 (1992).

However, we reject the Agency's assertion that, under
Proposal 2, although the unit employee to whom supervisory
duties are temporarily assigned "technically" remains in the
unit, the employee is outside the unit "for some purposes."
Statement of Position at 11 and 13. The Agency provides no
support for its contention that a unit employee who
temporarily performs some supervisory backup duties under
Proposal 2 would be required to be removed from the unit.

Accordingly, we find that the intent and the effect of
the proposal in Department of Labor is entirely different from
the intent and the effect of Proposal 2 in this case.
Consequently, we find that Proposal 2 is distinguishable from
Department of Labor.

For the foregoing reasons, we find, under Cherry Point,
that Proposal 2 principally relates to the conditions of
employment of unit employees, rather than purporting to
regulate the conditions of employment of supervisory
personnel. Because we found in Defense Mapping Agency that
Proposal 2 does not directly